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2026 IECA 104

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL CRIMINAL Court of Appeal Record Number: CA0249/2024 Bill Number: CCDP 0076/2023A Neutral Citation: [2026] IECA 104 Edwards J. McCarthy J. Butler J. BETWEEN/ THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT – AND – DANIEL DOOLEY APPELLANT JUDGMENT of the Court delivered by Ms. Justice Butler on the 3rd day of June 2026 Introduction

  1. Thomas Dooley was killed in a frenzied attack by a group of men at a graveyard in Tralee, County Kerry on 5th October
  2. He, along with hundreds of others, was attending the burial of a local woman who was also his cousin. Very shortly after he had entered the graveyard with his wife and four of his children, he was set upon by the group of men in an apparently coordinated attack in which weapons, including a variety of bladed weapons, were used. The deceased sustained four sharp force injuries (two stab wounds, a chop wound -2and an incised wound) and a number of blunt force injuries. He was removed from the scene by ambulance and died from his injuries in hospital later that day.
  3. Following a lengthy trial between May and July 2024, the appellant was one of six men convicted of the murder of Thomas Dooley. The prosecution case was one of joint enterprise, i.e. that the six co-accused came together with the purpose of attacking and causing serious harm to the deceased and to that end they travelled to the cemetery armed with various implements and carried out the attack. The prosecution case was that they then fled the scene in three vans, travelling initially in convoy but then dispersing and taking circuitous routes home. The evidence against the appellant was largely circumstantial. No weapons were recovered, and no DNA or other forensic link was made between him and the deceased.
  4. The appellant raised a number of grounds of appeal which, at the hearing of the appeal, counsel on his behalf said could all be encompassed within the overarching contention that the case against the appellant should have been withdrawn from the jury at the close of the prosecution evidence. This in turn was heavily premised on the fact that the case made against the appellant initially was materially different to that against the other co-accused. This is because from the outset, in interviews conducted by the gardaí in the immediate aftermath of the attack, the other five co-accused were identified by the deceased’s widow and the older children as having been involved in the attack. The widow and one of the older children also identified another man, M, as having been involved, but when arrested M provided an alibi which was verified by CCTV footage which showed he had been elsewhere at the material time. M was not charged.
  5. The other five co-accused were arrested, charged and arraigned and a trial date set for May
  6. The appellant was arrested in connection with the murder a number of days after the death of the deceased in October 2022 but released without charge. He was re-arrested -3in February 2023 and again released without charge. The appellant was arrested for a third time on 16th April 2024 and charged with murder on 23rd April
  7. The charges against the appellant were joined to the trial of the co-accused which was already scheduled to take place a month later. The co-accused were re-arraigned alongside the appellant.
  8. However, during the course of the trial, the deceased’s widow, who was the main prosecution witness of fact, gave evidence as to what had occurred at the graveyard and, for the first time, she identified the appellant as having been involved in the attack. An application on behalf of the appellant to have the jury discharged as a result of this evidence was refused and the trial proceeded. I will return to this issue when looking at the grounds of appeal in more detail.
  9. Because of the unusual nature of this case, we propose to set out the background generally and the evidence against the appellant more specifically before looking at the grounds of appeal. Background and Evidence Against Appellant
  10. All six of the convicted men are related to each other and to the deceased. The extended familial relationships are complex. The appellant (who was the second named accused) and two of his brothers (the third and sixth accused) were second cousins of the deceased. One of the brothers (the third accused) is also a brother-in-law of the deceased, having married the deceased’s sister. Another two of the six (the fourth and fifth accused) are sons of the third accused and therefore nephews of the appellant. The final man (the first accused) is a brother of the deceased and a second cousin of the appellant. He is also married to the appellant’s sister and therefore a brother-in-law of the appellant, and the third and sixth accused. It appears that at some time in 2019 there was a significant falling out amongst members of the extended family. -
  11. The events which occurred in the graveyard took place in a little under two minutes. There is no CCTV footage of events within the graveyard itself, but a CCTV camera located at the shop/forecourt directly across the road from the entrance to the graveyard recorded those who entered and left. At approximately 11:41am the deceased, his wife and four children are seen, having emerged from a blue vehicle, entering the graveyard. By 11:43 the deceased’s wife and children are seen running from the graveyard into the shop directly across the road. At the same time, a number of men are seen running from the graveyard to three vans parked at the entrance and getting into those vans which then leave the scene at speed and apparently in a convoy.
  12. The deceased’s widow and children made statements to the Gardaí and gave evidence of what occurred in the graveyard. Naturally because the incident was unexpected, occurred very quickly and was undoubtedly traumatic, this evidence is not entirely clear or always consistent. The widow described following her husband and son into the graveyard. She saw the first and third accused with two other men behind them and two more (the fourth and fifth accused) running in the gate. She described various weapons in the hands of some of the men or weapons appearing when they took off their coats. She described the men surrounding her husband, grabbing him by the lapels and hitting him with weapons as a result of which he was bleeding profusely. She attempted to intervene but was hit with a weapon and knocked to the ground sustaining a serious injury. At that point she ran out of the graveyard with her children.
  13. In her initial interviews and throughout much of the investigation the widow identified the five co-accused plus another man, M - who is also a brother of the appellant, as the six men who had attacked her husband. She did not name the appellant. As previously noted, M was eliminated from the Garda investigation because his alibi, which placed him elsewhere at the material time, was verified by CCTV evidence. An issue arose as to if and -5when the widow became aware that M was not going to be prosecuted. This was because in on 16th December 2023 she signed a letter/request form asking the DPP to provide reasons why three people, including the appellant, were not being prosecuted in relation to the death of her husband.
  14. In her direct evidence when describing the group of men who gathered around her husband, for the first time the widow included the appellant in the list of names. She explained this on the basis she had previously been mistaken and had got confused with the faces “‘cause [M] and Danny is an awful lot alike”. After the application to discharge the jury was rejected, the widow was cross-examined on this issue on behalf of a number of the accused, including the appellant, but maintained that she had been mistaken due to the similarity between M and the appellant. She said she realised she had made a mistake a few months after she had made her original statements but had not told the gardaí this as she assumed they would do their job and find out who it was.
  15. The oldest son present in the graveyard was 15 years of age at the material time. He named the same six men, including M, that his mother had initially named as being involved in the attack. He also did not name the appellant. He gave a description of the men producing weapons from under their clothing and trying to get to his father. He described the men as being “all lined up… They were coming towards us”. He himself sustained an injury to the back of his head in the attack. Under cross-examination he maintained that he was 100% certain that M, whom he described as having a machete, was there.
  16. The second son, who was aged 12 at the material time, identified the first, third, fourth and fifth of the co-accused and two other brothers whose names he did not know as being present. He described the men as having various weapons, running towards his father, who was on the ground and beating him. The two boys described the clothing worn by the men. The two younger children also gave evidence. -
  17. A number of witnesses who were at the burial or in the vicinity of the graveyard gave evidence. Two are relevant as regards the appellant. A Ms. K.H. who was in the graveyard gave evidence that she saw “the Dooleys” coming in. She described them as “walking in single file” which she thought “looked weird”. She recognised the first accused and the appellant and described the others as cousins from Cork who she did not know by name. A Mr. S.O’D., a nephew of the woman being buried, was one of those carrying her coffin. He heard screaming down by the end of the graveyard and ran down towards that area. He saw the deceased lying on the ground and people running to the gate. Amongst those running he recognised all the accused, including the appellant, and two other members of the Dooley family. This witness was not cross-examined. At trial it was not disputed that the appellant was present in the graveyard.
  18. The balance of the evidence against the appellant was largely derived from CCTV footage collected by the gardaí. The CCTV evidence comprised a montage of over 170 clips from different sources which were put into chronological order. The sources included shops, garages, industrial units and passing public service vehicles such as buses and an ambulance. This montage followed the three vehicles in which the accused men had arrived in the graveyard, a white Renault van driven by the first accused in which the appellant was a passenger, a grey transit van and a white Peugeot partner driven by others of the defendants from Cork.
  19. Specifically, the white Renault van driven by the first defendant is tracked driving from Killarney to Tralee and arriving at the housing estate where the appellant lives just after 10am. The appellant is seen coming out of the house carrying a long stick-like object which he placed in the rear passenger side of the van. He then runs back to the house and back again to the van. At 10:23am the van left and drove towards Tralee. The CCTV compilation then follows the white van as it drove through and around Tralee, joined the funeral cortege -7at the church where the funeral was taking place and arrived at and parked outside the graveyard. When the white van parked, two men are seen getting out of it, one of whom was identified from his clothing as the appellant by a Garda witness. These two men join a small group standing at the entrance to the graveyard.
  20. Similar evidence was given in relation to the other two vehicles. These vehicles are also seen arriving at the graveyard and parking on the footpath directly outside it. One of the vehicles is seen moving from a parking spot on the forecourt of the shop opposite the entrance to the graveyard to the footpath just outside it. The CCTV from that shop shows the men from two of the vans standing in a group outside the graveyard. Two men from the third van stand distinctly separate to the main group.
  21. The CCTV evidence from the shop opposite the graveyard shows the deceased and his family arriving and entering the graveyard and being followed in by the two men from the third van. Less than two minutes later a number of people are seen running from the graveyard. The deceased’s widow and her children run into the shop. A number of men are seen running from the graveyard through the entrance and getting into the three parked vans all of which immediately pull out and drive towards Cork, initially in a convoy but later they split up.
  22. The CCTV evidence then tracks the journey of each of the three vehicles. The white van driven by the first accused takes a route through Castleisland, Cordal, Ballydesmond and Bothar Buí where it pulled into the forecourt of a Supervalu supermarket. The appellant (again identified by his clothing) is seen getting out and going into the shop. The van then resumed its journey. The driver (the first accused) let the appellant out at a housing estate near the Model Farm Road in Cork. A male (again wearing clothing identical to the appellant) is seen walking into the estate and entering the appellant’s mother’s house. The -8van then drove to Cork University Hospital where the first accused is seen entering the hospital where he was later arrested by the gardaí.
  23. The gardaí presenting this evidence identified a number of allegedly suspicious or at least unusual features of the journeys taken. The routes taken by the vehicles are circuitous and not those which would be the most direct or quickest ways of arriving at their ultimate destinations. The first accused, who sustained injuries in the attack did not seek medical treatment in the hospital at Tralee which was in the immediate vicinity of the graveyard but instead drove to Cork some 120 km away. Grounds of Appeal
  24. The central thrust of the appellant’s appeal is that the trial judge erred in refusing to discharge the jury on the application of counsel for the appellant. That application was made after the widow’s evidence-in-chief in which she identified the appellant as one of the men in the group who attacked her husband. The admissibility of that identification evidence is also an important aspect of the other main ground of appeal which is that the trial judge erred in refusing to direct the jury to return a verdict of not guilty at the close of the prosecution evidence. In essence, the appellant contends that the evidence against him was not sufficient to have safely allowed the case to go to the jury or for him to have been convicted upon it. This argument is made as regards the evidence against him both including and excluding the widow’s identification of the appellant.
  25. The other original grounds of appeal concern the failure of the DPP to call or tender a particular garda witness and the admissibility as evidence of inferences arising from an interview with the appellant. The appellant brought a motion seeking to expand these grounds of appeal which was adjourned to the hearing of the appeal. That motion was not formally moved and, for the most part, the grounds raised in it were not addressed in oral -9argument by counsel on behalf of the appellant. Some, but not all, of these matters are covered in the written legal submissions on behalf of the appellant.
  26. We will look at the two central issues, namely whether the jury should have been discharged and whether a verdict of not guilty should have been directed at the close of the prosecution evidence before looking at the other grounds of appeal. Sufficiency of Evidence
  27. Counsel for the appellant characterised the contention that the case should have been withdrawn from the jury at the close of the prosecution case as his core argument. He relied on the decision in R v. Galbraith [1981] 1 WLR 1039 which has been consistently approved and applied in this jurisdiction. The relevant principles are set out in the judgment of Lord Lane C.J. (at p. 1042) as follows: – “How then should the judge approach a submission of “no case”?

(1)If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2)The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (
  1. a)Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (
  2. b)Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of - 10 the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury… There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.” 25. In DPP v. M [2015] IECA 65 Edwards J., speaking on behalf of this court, clarified certain aspects of the application of Galbraith as follows: – “47. At the outset the Court wishes to address a misconception that it occasionally encounters, that the second limb of Lord Lane’s celebrated statements of principle in R v Galbraith represents authority for the proposition that a case must be withdrawn from the jury if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains significant inconsistencies. This Court wishes to emphasise that it is not authority for that proposition. 48. On the contrary, the emphasis in Galbraith is on the primacy of the jury in the criminal trial process as the sole arbiter of issues of fact. What Lord Lane was in fact saying in Galbraith was that even if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains significant inconsistencies, it is for the jury to assess that evidence and make of it what they will, unless the state of the evidence is so infirm that no jury, properly directed, could convict upon it. Accordingly, what Galbraith is in fact concerned with is fairness. 49. Moreover, implicit in the Galbraith principles enunciated by Lord Lane, is that withdrawal of a case from a jury should be an exceptional measure, to which resort should only be had for the purpose of avoiding a manifest risk of wrongful conviction.” - 11 26. Counsel for the appellant characterised the Galbraith test as having two limbs, the first covering situations where there is a total absence of evidence against an accused and the second looking at the quality of the evidence against the accused in the sense of its credibility and reliability. He urged the court to consider the second limb as raising questions of fairness and to ask whether it was proper to allow the jury to assess the evidence in this case. It is clear from Edwards J.’s comments in DPP v. M (above) that Galbraith is in fact concerned with fairness, but it does not follow that where evidence is weak or has inconsistencies that the assessment of that evidence becomes a matter for the trial judge rather than the jury. 27. The passage quoted from Galbraith identifies three potential scenarios. The first, uncontroversial one is where there is no evidence against an accused such that the case should obviously be withdrawn from the jury. It is not contended that this applied here. The second and third scenarios arise where there is some evidence against an accused in which case the trial judge must decide whether the prosecution case based on that evidence, taken at its height, is such that a jury properly directed could properly convict the accused. It is only in circumstances where a properly directed jury could not properly convict based on the evidence that the case should be withdrawn from the jury. If there is a basis upon which the jury could properly convict, then the case should be permitted to go to the jury, and it is a matter for the jury to decide if the evidence is credible or reliable and to determine how much weight it should be given. 28. The matter of concern to a trial judge in making a decision pursuant to Galbraith is whether there is sufficient evidence to allow the case to go to the jury. The separate issue of whether any step taken in the trial is fair or unfair it is not a Galbraith issue but is governed by DPP v. PO’C [2006] IESC 54, [2006] 3 IR 238. There, the Supreme Court (Denham J.) held that a trial court judge has a general and inherent power, exercisable during the course of a trial, to protect its process from abuse and that this power includes a power to safeguard - 12 an accused person from oppression or prejudice. The power of a trial judge to make such orders as are necessary during the course of the trial includes orders arising from the evidence. In PO’C the issue of concern was delay but the principle is equally applicable to instances in which prejudice is asserted because of the circumstances in which otherwise admissible evidence is introduced at trial. 29. This distinction is important in the circumstances of this case. As set out above, when giving her evidence-in-chief, the deceased’s widow for the first time identified the appellant as one of the group of men who gathered around her husband and attacked him. As a result, counsel for the appellant made an application to discharge the jury. That application was based on the fact that the appellant had no prior notice that he would be implicated in this manner by the chief prosecution witness. Consequently, he was taken by surprise and allegedly prejudiced. Counsel did not contend that the identification evidence was per se inadmissible. In exchanges with the trial judge counsel accepted that if the jury were to be discharged and the prosecution decided to proceed against the appellant in a further trial, then, subject to a supplemental statement being taken from the widow and served on the appellant, the identification evidence could be properly led. Thus, the key issue was the absence of notice of the evidence and whether the appellant had adequate time to prepare to meet it. 30. In ruling on the application, the trial judge noted that when giving oral evidence witnesses can and do deviate from the content of their statements as contained in the book of evidence. When this arises, the trial court has to consider the impact of the additional evidence (or, on occasion, the omission of something that was included in his statement). In circumstances where other witnesses placed the appellant in the graveyard at the material time, albeit those witnesses had not seen the appellant doing anything, the trial judge did not regard the identification evidence from the widow as entirely new. The credibility of the - 13 widow’s identification evidence was ultimately a matter for the jury. The trial judge was conscious of the fact that the appellant was maintaining his innocence and was in custody and the consequent desirability that a trial, already underway, should proceed. 31. The trial judge refused the application to discharge the jury but did so using the phrase “at this juncture”, expressly leaving open the possibility of the application being renewed at the end of the prosecution case if it transpired that the appellant was in fact prejudiced. She also indicated a willingness to allow the appellant’s legal team time to prepare for the crossexamination of the widow and flexibility in terms of the sequencing of that crossexamination. 32. At the close of the prosecution evidence, an application for a direction was made on behalf of the appellant on Galbraith grounds. Whilst reference was made to the lateness of the widow’s identification of the appellant as one of her husband’s attackers and also to the Gardaí’s surprise at this evidence emerging at trial, the application was not based on any inherent unfairness arising from the timing of that evidence. Instead, it was contended that, absent the identification evidence, the case against the appellant at the point of his return for trial was very limited. The widow’s identification evidence was characterised as being unclear, uncertain, tenuous and unreliable to the extent that it would be dangerous to record a conviction based upon it. 33. In reply, counsel for the DPP identified the elements of the evidence against the appellant (excluding the identification evidence) from which it was contended the jury would be entitled to draw inferences that the appellant was present at and a participant in the death of the deceased. Counsel then characterised the widow’s identification evidence as “plain, admissible and relevant evidence” that the appellant was one of the group of men armed with weapons who surrounded the deceased and attacked him. He submitted that the evidence met the threshold to go to the jury and for the court to withdraw the case from the - 14 jury would be to substitute the court’s concerns for the job of the jury in weighing the evidence. He pointed out that the widow had been cross-examined thoroughly and that it would be for the jury to decide if they accepted her evidence and, even if they did not accept it or had significant caveats about it, whether they were satisfied to convict on the balance of the evidence. 34. In her ruling refusing a direction, the trial judge summarised the relevant evidence. She then focused on the two-minute window within which the attack occurred and made a number of observations. She noted that the prosecution case was based on common design between the accused men when they set out that morning to cause at the very least serious harm to the deceased. That intention, she said, could not be grounded in mere presence in the graveyard as many people were present who had no involvement in the attack. There was no evidence to suggest self-defence or provocation or that the parties were mutually engaged in an altercation in which the deceased was somehow wounded. She went on to conclude: – “However, it is also the case that in that short time nothing could have been done by Thomas Dooley to excite a violent response. Thus, what occurred was preplanned and the attacking parties were ready and waiting. It is a reasonable inference for the jury to draw that Thomas Dooley's attackers were equipped in advance of the attack as, again, there is no reality in somehow weapons capable of inflicting the damage done to both Thomas and his wife, Siobhan, being casually available in the graveyard setting. While it may be possible to pick up a bladed implement in the heat of the moment in a residential setting, for instance, the same does not apply in a graveyard.” - 15 35. The trial judge then proceeded to consider the evidence of the widow, noting that the DPP had directed a prosecution of the appellant on evidence other than the widow’s purported identification. She made the following observations regarding juries: – “Juries deal with difficult evidence all the time. The deal with historical matters, vulnerable witnesses, hostile witnesses, identification evidence under the most challenging of circumstances, contradictory witnesses and self-serving witnesses on a regular basis. They seldom deal with cases wrapped up in a bow. That's because those are the cases which lead to pleas. Juries understand directions about the how and how to approach the evidence and where they don't they have the good sense to come back for clarity. Juries increasingly look for transcripts of evidence so as to be sure what they have noted is correct. They look at exhibits and rewatch video evidence. It is evident the juries want to get it right from the questions they ask. Mixed verdicts in cases with multiple accused or multiple charges show juries understand that they must look at the case against an accused or each charge separately and not view the charges on the indictment as a game of dominoes, one down, all down.” 36. The trial judge then considered Galbraith and cases in which it was applied in this jurisdiction. She noted the reiteration of the primacy of the jury in DPP v. M (above) and looked at a passage in McGrath on Evidence (3rd Ed at paragraph 2-98) dealing with its application in cases where the evidence is circumstantial, culminating in the observation of the Court of Appeal in People v. Hanley [2015] IECA 112 that Galbraith does not require the prosecution “to show that the jury could not reasonably reach any alternative inference contended for. The question is whether it is properly open to the jury to reach the inferences contended for by the prosecution.” - 16 37. Finally, the trial judge looked at the evidence against the appellant including witness evidence as to his presence in the graveyard and what he was doing immediately prior to and after the attack. She found that there was “much circumstantial evidence” which she outlined. She then asked herself whether it was properly open to the jury to reach the inferences contended for by the prosecution and concluded that it was. The evidence of witnesses placing the appellant in the graveyard was a matter for the jury, as were the inferences to be drawn (or not) from the circumstantial evidence regarding the appellant’s journey to and from the graveyard all of which the prosecutor contended was evidence of a common design and joint enterprise. She excluded consideration of any inferences to be drawn under section 19 of the Criminal Justice Act 1984. Discussion and Analysis 38. It is difficult to understand how the trial judge is alleged to have erred in her application of the Galbraith principles. Although counsel for the appellant described the evidence against the appellant (excluding the widow’s identification) as tenuous, this is manifestly not a case where there was no evidence that the alleged crime was committed by the appellant. Consequently, the issue under the second limb of Galbraith was whether the evidence was so tenuous, weak, vague or inconsistent that a properly directed jury could not properly convict on it. The evidence, absent the widow’s identification evidence, was circumstantial but it does not necessarily follow that it was tenuous, weak, vague or inconsistent. 39. Absent the identification evidence, the evidence against the appellant consistently showed him to have been in the company of the first accused from the point in time at which he was collected from his home that morning to the point in time at which he was dropped to his mother’s home in Cork later that afternoon. The CCTV evidence showed the appellant placing an item, which could have been used as a weapon, in the rear of the first accused’s - 17 van. The CCTV evidence included the crucial period when the first accused’s white Renault van parked outside the graveyard and two men were seen to emerge from it, one of whom was identified by a garda witness as the appellant. Then, two minutes later a group of men are seen running from the graveyard, one of whom was identified by a civilian witness as the appellant. All of the men get into the vans and leave the scene. 40. Clearly, the jury would be required to draw inferences from this evidence in order to be satisfied that the appellant was part of the joint enterprise that was a pre-planned violent attack on the deceased. We are satisfied that the evidence against the appellant was more than sufficient for it to be properly open to the jury to draw those inferences. Although circumstantial, this evidence cannot fairly be characterised as tenuous, weak or vague. We note that the DPP had directed that a prosecution be taken against the appellant on the basis of this circumstantial evidence. While the view of the DPP could never be determinative of the sufficiency of the evidence as it actually emerges at trial, it is nonetheless of some relevance that an intention to prosecute the appellant had been formed and proceeded with before the prosecution could have known that the widow would change her evidence and identify the appellant as having been directly involved in the attack. 41. Consequently, the trial judge did not err in refusing to direct an acquittal of the appellant at the close of the prosecution case. Thereafter, the question of whether the evidence was credible and reliable and warranted the drawing of those inferences was exclusively a matter for the jury. 42. The circumstantial evidence was added to during the course of the trial by the identification evidence of the deceased’s widow. This is the only element of the evidence against the appellant which can be characterised as inconsistent as the widow had previously identified a different person (M) as being part of the group of attackers and had not named the appellant as part of that group. The widow was cross-examined extensively on this - 18 apparent change in her evidence and also on a connected issue as to whether, and if so why, she had signed a letter to the DPP in December 2023 asking why the appellant had not been prosecuted and requesting that he be. One of her children who identified the other person, M, as being one of the attackers did not change his evidence at trial and resolutely maintained that M was present in the graveyard. 43. Again, we are satisfied that the trial judge did not err in refusing to direct an acquittal of the appellant at the close of the prosecution case notwithstanding that the evidence against the appellant at that point included evidence from a witness who had changed her account and whose new account was inconsistent with the evidence of another witness. The law does not mandate that any inconsistency in the evidence against an accused person warrants the case being withdrawn from the jury. The question is whether on one possible view of the evidence a properly directed jury could properly convict. The strength or weakness of the evidence is a matter to be assessed by the jury. Thus, it is classically a matter for the jury to decide if the widow’s identification evidence was credible and reliable and what weight, if any, to afford it. The grounds of appeal relating to the application of the Galbraith principles cannot succeed. Identification Evidence 44. The grounds of appeal regarding the identification evidence and the arguments made on foot of them were somewhat tenuous. This is unsurprising in circumstances where the initial request to discharge the jury after that evidence had been given was based exclusively on the element of surprise and the potential prejudice to the appellant in conducting his defence. The admissibility of the identification evidence per se was not disputed. The application to discharge the jury was rejected by the trial judge on an interim basis (“at this juncture”) and with the possibility of it being renewed at the end of the prosecution case in - 19 the event that prejudice materialised was left open. The application for a directed acquittal at the end of the prosecution case was made on Galbraith grounds (i.e. sufficiency of the evidence) and was not based on any prejudice allegedly suffered by the appellant in the conduct of his defence as a result of the lack of prior notice of the identification evidence. 45. In those circumstances, counsel fairly acknowledged that he faced a difficulty arising from the principle set out in DPP v. Cronin (No. 2) [2006] 4 IR 329. In his judgment in Cronin, Kearns J. stated as follows: – “It seems to me that some error or oversight of substance, sufficient ground an apprehension that real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with the review of the trial and the rulings made therein and not with other suggested errors or oversights which may predate the trial or have been amenable to remedy in some other manner. Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition the end of the judge's charge at the original trial, even though competent lawyers at the trial itself did not seem fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself.” 46. If those representing the appellant at the trial were of the view that notwithstanding the time and flexibility the trial judge had indicated she was willing to allow to deal with the widow’s identification evidence, his defence had been irreparably prejudiced, it was open to them to have made an application in this regard under DPP v. PO’C (above). Not having - 20 made such an application, the appellant cannot now make a complaint on appeal regarding a point which was not raised at his trial. In any event, having read the transcripts of the trial, counsel’s decision not to have made such an application seems, on the merits, to have been correct as there was no evident inability on the part of his lawyers to deal comprehensively with all matters on behalf of the appellant. 47. That should be the end of the grounds of appeal relating to the admissibility of the identification evidence. However, counsel for the appellant seeks to link the grounds of appeal based on the admissibility of the identification evidence with those based on Galbraith. He describes this as the “overall circumstances” amounting to an unfairness and contends for an overlap between PO’C and Galbraith which allows him to revisit the identification evidence on appeal notwithstanding the absence of a PO’C application regarding that evidence at trial. He asserts that the unfairness of the trial was compounded as the appellant was, as he put it, “lumped in” with the co-accused, against whom the evidence was arguably stronger, thereby creating a risk that the jury would make an assumption that, regardless of the strength or weakness of the evidence against the appellant, they were all in it together. 48. There are a number of difficulties with this approach. Firstly, quite clearly the prosecution case was that all of the accused were involved in a joint enterprise which comprised a pre-planned attack on the deceased using weapons or implements which they brought with them for that purpose. In such circumstances it is unsurprising that all of the accused were tried together and much of the evidence would make little sense to the jury if each were tried separately. The appellant could have, but did not, object to his trial being joined to that of his co-accused. 49. Secondly, as was well described by the trial judge in her ruling on the Galbraith argument, there is no reason to believe that juries make assumptions as to guilt regardless of - 21 the strength or weakness of the evidence against any particular accused. On the contrary, experience shows that juries make distinctions not just between co-accused, but as between different charges on the same indictment against a single accused based on the evidence which they have heard. Trial courts frequently experience juries requesting clarification of evidence which they have heard, seeking to review exhibits etc. The appellant has not established any grounds for believing that the jury in this case were incapable of or did not fairly assess the evidence against him prior to reaching their decision to convict him. 50. There is undoubtedly some overlap between PO’C and Galbraith in that both cases involve the application of principles which are designed to ensure that the trial of any accused person is conducted fairly. There may be instances in which those representing an accused person may choose between making an application based on PO’C or making an application based on Galbraith – or even make both applications - in relation to the same evidence. However, there is also a distinction between the two, the importance of which should not be undermined. Galbraith focuses on the sufficiency of the evidence as a whole and whether it is safe to let that evidence go to a jury with the possibility that the accused person might be convicted on it. PO’C on the other hand focuses on the fairness or unfairness of individual steps taken in the course of a trial which may include decisions made by the the trial judge regarding the circumstances in which evidence is introduced. There may well be cases in which a cumulation of factors reaches a tipping point of unfairness which those factors individually might not reach. However, if a decision is made to admit evidence, and that decision is not challenged or is upheld on appeal, then the only matter of relevance to the consideration of that evidence for Galbraith purposes is its sufficiency and not the fairness or unfairness of its admission in the first place. 51. The transcripts of the trial do not suggest that the appellant was impeded in the conduct of his defence by reason of the element of surprise attaching to the widow’s identification - 22 evidence. On the contrary, she and other witnesses were cross examined very thoroughly and effectively on his behalf. In circumstances where the appellant chose not to revisit the trial judge’s decision to admit the identification evidence - although that decision expressly envisaged the application being renewed if prejudice actually arose - and did not rely on surprise or lack of notice as part of the application for a direction which was made at the end of the prosecution case, he cannot now complain about the admission of that evidence on his appeal. 52. In the circumstances it has not been shown that the trial judge made an error regarding the admission of the identification evidence and the appellant is not entitled to revisit the admission of that evidence as part of his complaint concerning the application of the Galbraith principles. Warnings in relation to the Widow’s Evidence 53. In his written submissions, the appellant contends that the warnings given by the trial judge regarding the widow’s identification evidence were inadequate and, in addition, there was a special need for a caution warning to be given as to the unreliability of the widow’s evidence. These points were not addressed in oral argument but are still relied upon by the appellant. 54. The starting point regarding the identification warning is the warning actually given by the trial judge in her charge to the jury regarding recognition evidence. Firstly, she distinguished between identification evidence, where the person identified is otherwise unknown to the witness and recognition evidence where the person identified is known to the witness. The appellant was known to the widow, so her identification of him is properly characterised as recognition evidence. The trial judge emphasised that experience in the courts has shown that mistakes are made even where a witness honestly believes they have - 23 recognised someone they know. Consequently, she warned the jury of the need to be careful, cautious and conscious of the dangers which can arise in respect of such evidence. The need to consider such evidence carefully was reiterated on two further occasions in the charge. She noted the circumstances of the case and that it “all happened in a very short period of time”. She urged the jury to be sceptical and to challenge the evidence but, having done all that, if they were satisfied beyond a reasonable doubt they could act upon it. 55. The appellant’s objection to this warning is tied up with his broader objection to the admissibility of the identification evidence which has been dealt with in the preceding section of this judgment. In particular, the appellant argues that evidence should not have been admitted without additional procedural safeguards such as a formal identification parade. Beyond that, the main argument advanced is that the trial judge should have, but did not, point out that the witness had already mistakenly identified another person as having been involved, which itself was capable of casting doubt on the correctness of her identification of the appellant. 56. In response, the DPP accepts the need for a warning to be given to a jury regarding visual identification evidence (per People (AG) v. Casey (No. 2) [1963] IR 33) and that dock identifications are in principle undesirable and unsatisfactory (per DPP v. Christopher Cooney [1997] 3 IR 205). However, the DPP contends that the warning given by the trial judge was adequate in the circumstances of the case. Those circumstances include the fact that the evidence in question was recognition evidence rather than pure identification evidence as the widow knew the appellant, albeit that she had not seen him since 2019 when the two branches of the family fell out. It was also relevant that the prosecution case was not dependent on the widow’s identification of the appellant as other evidence had been led and relied on by the prosecution. The DPP contends that the warning given met the - 24 requirements as set out by Widgery C.J. in R v. Turnbull [1977] QB 224 and approved by Hardiman J. in DPP v. O’Donovan [2005] 1 IR 385 which are as follows: – “(
  3. a)Instruct the jury as to why it is necessary to be cautious with such evidence; (
  4. b)Point out that very often an identification witness, even when mistaken, can be honest and very convincing; (
  5. c)Direct the jury to examine closely the circumstances of the identification e.g. the distance of the observer from the criminal, the light, the date and time of observation, and whether the witness had seen the accused before, and that he should; (
  6. d)57. remind the jury of any weaknesses in identification.” We are satisfied that the warning given by the trial judge met these criteria and was adequately particularised having regard to the circumstances of the case. We also accept the DPP’s view that holding an identification parade would have been superfluous in circumstances where the appellant was someone whom the witness knew and to whom she was related by marriage. This ground of appeal is rejected. 58. The appellant’s written submissions traverse the same ground, characterised as “misidentification”, in contending that there was a special need for a caution warning regarding the widow’s evidence. Under this heading the appellant also relies on credibility issues concerning the widow’s evidence regarding the letter dated 16th December 2023. This submission is based, again, on the judgment of Kingsmill Moore J. in Casey (No.2) (above) to the effect that a trial judge must give a jury “such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case.” In circumstances where, as the appellant puts it, serious concerns were raised regarding the credibility of the widow and, given the absence of other direct evidence against the appellant, - 25 he contends that the trial judge ought to have flagged the need for caution as regards her evidence and the failure to do so was an error of law. 59. In her charge to the jury the trial judge summarised in some detail the evidence given by the widow both in her direct evidence and in response to cross-examination by lawyers representing each of the accused. The trial judge then proceeded to outline the position of both sides as regards that evidence by reference to their closing speeches. She said that the prosecution’s position was that the jury had to look closely at the widow’s evidence “with all its frailties”. She identified particularly the widow’s first mention of the appellant and the explanation given by her for the confusion with M. The trial judge then said this was a matter for the jury who should assess the widow’s evidence “both in what she said and how she said it”, noting the prosecution’s view that the evidence was clear and the jury could rely on it. 60. The trial judge then dealt with the appellant’s position on the same evidence in a similar manner noting, in particular, the widow’s delay in identifying the appellant as having been involved and the extent to which she was challenged on this evidence on behalf of the appellant and the other co-accused. Again, she emphasised the need for care and caution in the treatment of the widow’s evidence. 61. The trial judge did not give a specific warning to the jury regarding the unreliability of the widow’s evidence. In our view she was not obliged to do so. Ample warning was given regarding the danger of convicting on identification/recognition evidence and the need for the jury to exercise care and caution in acting on such evidence. The identification evidence and the manner in which it came to be given is the main plank upon which it is now asserted that an additional special warning was also required. Although requisitions were raised on the identification warning, no requisition was raised either during or at the conclusion of the trial judge’s charge as regards a special caution warning. Consequently, - 26 the appellant faces a difficulty under DPP v. Cronin (No. 2) as discussed above in raising it now for the first time. 62. Even if that difficulty did not arise, it was made clear to the jury from the manner in which the widow’s evidence was summarised by the trial judge coupled with the warnings given regarding her identification evidence, that they needed to consider her evidence carefully, to exercise caution in doing so and only to act on that evidence if satisfied beyond a reasonable doubt that it was appropriate to do so. In the circumstances, the trial judge did not err in not delivering an additional caution warning regarding the asserted unreliability of the widow’s evidence. Absent Garda Witness 63. The grounds of appeal contend that the trial judge erred in failing to direct the prosecution to call or tender a particular garda witness who was the Garda Liaison Officer dealing with the deceased’s widow. The potential relevance of that person’s evidence arose in the following circumstances. In December 2023/January 2024 an application was submitted to the DPP on a standard form making a request that the appellant be prosecuted and asking for reasons why he had not been prosecuted at that time. The widow’s signature appeared at the bottom of that form which was dated 16th December 2023. However, her evidence in relation to the completion of that form was unclear and appeared to suggest either that she had not signed it or that the form had been completed by someone else and she had been asked to sign the completed form. In cross-examination she was questioned as to when she had become aware that M had a verified alibi and so would not be prosecuted and when she first suggested the appellant was involved. The letter of 16th December 2023 calling for the appellant to be prosecuted was relevant to those issues. - 27 64. The Garda Liaison Officer did not provide a statement either as part of the book of evidence or any notice of additional evidence or otherwise in the investigation. Counsel for a co-accused made an application, which counsel for the appellant adopted and which was renewed on a number of occasions, for the trial judge to direct the prosecution to compel the Garda Liaison Officer as part of the prosecution case. In fact, the application was not just that the Garda Liaison Officer be called as a witness but that she should be called at that point in the trial to deal directly with the inconsistencies in the widow’s evidence regarding the letter of 16th December 2023. 65. This application was objected to by counsel for the prosecution which saw the prosecution’s duty as being to present evidence of fact and did not see that officer as having an evidential role. The prosecution also wished to call its evidence in a particular sequence, in particular the witnesses of fact, so as to present to the jury a coherent picture of events as they had occurred. The prosecution adopted the position that it would not call that witness unless directed to do so by the court. When the matter was returned to in a subsequent application, the prosecution reiterated that it did not intend on calling the Garda Liaison Officer but that she would be made available if the defence wished to call her as a witness. Counsel for the defendant reserved his position and the matter did not arise again. 66. The trial judge rejected the application primarily on the basis that the person whose signature appeared at the end of the form and therefore was the person making the request of the DPP, was the widow. The widow had given evidence and had been cross-examined in relation to it. It was a matter for the jury to assess the credibility and reliability of that evidence. 67. It is acknowledged that the potential relevance of this witness only arose during the trial after the widow had given identification evidence placing the appellant in the group of men who attacked her deceased husband. Notwithstanding this, the Garda Liaison Officer - 28 was not a witness as to any material fact upon which the prosecution were relying and did not become an essential witness because the defence raised issues about the authorship and nature of a document created some considerable time after the date on which the offences took place. Neither is the absence of the witness a matter of fundamental fairness or unfairness in circumstances where the prosecution made it clear that the witness was available should the defence wish to call her for the purposes of clarifying the matters which they had placed in issue. In those circumstances the trial judge did not err in refusing to direct the prosecution to call this witness, if indeed the trial judge had power to do so, a point which it is not necessary to determine in the circumstances. Inferences 68. Under section 19 of the Criminal Justice Act 1984, as amended, inferences may be drawn from the refusal of an accused person to account to the Gardaí for his presence at a particular place at or about the time an offence was allegedly committed. Section 19
(1)provides as follows: – “
(1)Where in any proceedings against a person for an arrestable offence evidence is given that the accused – (
  1. a)at any time before he or she was charged with the offence, on being questioned by member of the Garda Síochána in relation to the offence, or (
  2. b)when being charged with the offence or informed by member of the Garda Síochána that he or she might be prosecuted for it, was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and - 29 the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed as the case may be, then, the court,… in determining whether the accused is guilty of the offence charged… may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.” The section has certain procedural safeguards built into it. A person may not be convicted solely or mainly on the basis of such an inference (section 19
(2)); the accused must be told of the potential consequences of a failure to account for his presence and must be afforded the opportunity to consult with a solicitor (section 19
(3)), and the interview must be electronically recorded unless the accused consents (section 19
(6)).
  1. This issue arises in the following manner in this case. The appellant was arrested on 10th October 2022 and interviewed on a number of occasions before being released. On the last interview (which took place on 11th October 2022) he was asked to account for his presence at a number of locations, for present purposes at the graveyard, described in evidence as the cemetery at Rath, Tralee between 11.12am and 11.45am on 5th October and at Supervalu, Bothar Buí, County Cork at 12:39pm on the same date. A similar question was put regarding a third location but, for reasons which are not relevant here, the trial judge excluded the possibility of an inference being drawn in respect of that location. No point was taken with the fact that an inference could be drawn from the appellant’s refusal to answer the question put to him regarding the second location, SuperValu at Bothar Buí. Therefore, the following discussion concerns only the inference, if any, to be drawn from the appellant’s failure to account for his presence at the cemetery. - 30
  2. The questions put to the appellant regarding the first location, i.e. the cemetery, were also put to another co-accused who was similarly under arrest. It seems that a prepared text or template was used by the gardaí and was read to the appellant. This template stated: – “You have been informed during your detention in the interviews that witnesses known to you personally, namely Bernadette Siobhan Dooley, James Dooley and a minor, have identified you at this location at this time carrying out the murder of Thomas Dooley and injuring Bernadette Siobhan Dooley during the attack on Thomas Dooley. CCTV footage downloaded clearly puts you in Rath Cemetery.”
  3. The prosecution acknowledged that this template was incorrect as regards the appellant. It applied to the co-accused but not to the appellant. As a matter of fact, the widow had not identified the appellant as being present at the location nor involved in the attack. Indeed, no witness at that time had directly identified the appellant as one of the men who carried out the attack. It had not been suggested to the appellant in the course of his interviews that he had been identified by the deceased’s widow as being present in the cemetery carrying out the murder of the deceased or injuring her. At a later point in the same interview the statement was clarified and the portion suggesting that the appellant had been identified by the deceased’s widow and other witnesses as being present at the location carrying out the murder was removed. The amended, corrected paragraph was then repeated by the gardaí on the invocation of section
  5. The trial judge was satisfied that the gardaí took appropriate steps to correct the misstatement and, crucially, that when formally invoking section 19 the correct scenario was put to the appellant such that at the material time no mistake arose. When dealing with statutory inferences in her charge to the jury, the trial judge noted that it had been incorrectly put to the appellant that he been identified by certain witnesses as being present in the cemetery but that this was corrected by the gardaí who clarified that they were talking about - 31 his presence at the location but not that he had been identified. The trial judge expressed herself satisfied that all procedures and protections under the section had been complied with and she advised the jury that they could draw such inferences as they felt proper about the appellant’s failure to account for his presence when requested by the gardaí to do so. This included that the jury might see these failures as capable of amounting to corroboration of other evidence in relation to which the failure to answer the questions was material. She also advised the jury that while they were entitled to draw inferences they were not obliged to do so and, further, that they could not convict on the basis of inferences alone.
  6. The appellant submits that the investigating garda could not have formed a reasonable belief as to the appellant’s presence at the graveyard and consequently that the circumstances at that stage of the interview did not call for an explanation from the appellant. The appellant contends that the correction of the misstatement does not cure the difficulty but rather highlights the absence of any basis for the investigating garda’s belief sufficient to allow the inference to be drawn under the terms of the statute. As the drawing of an inference is an intrusion on the appellant’s right to silence, there must be sufficient evidence to permit the inference to be drawn, and the appellant contends that there was a risk the gardaí were operating under a misapprehension or confusion regarding the identification of the appellant as an accused person.
  7. This is a situation where an error was made and corrected before the misstatement could be relied on to ground the invocation of the procedure under section 19 of the 1984 Act. Further, a full explanation was given in evidence by the relevant gardaí as to how the error arose. It may be salient in this regard that the trial judge watched the video recording of the interview at which these matters were put to the appellant. The fact that the interviews with the appellant had not proceeded on the basis that he had been identified as being present in the cemetery and a party to the murder by the deceased’s widow is consistent with the - 32 explanation given, namely that the template was drawn up for the purposes of invoking the same procedure against a different co-accused.
  8. The DPP submits, correctly in our view, that no prejudice has been identified by the appellant in this regard that requires further consideration. Indeed, it is striking that the appellant conceded at the trial that he was present in the cemetery, something which was confirmed by the statements of a number of other witnesses to whom the gardaí had spoken in the course of the investigation and by the CCTV evidence which shows him entering and leaving the cemetery at the material time.
  9. We are satisfied that this ground of appeal cannot succeed. There was an ample basis for the investigating member of An Garda Síochána to have a reasonable belief that the appellant’s presence at the graveyard may have been attributable to his participation in an offence. The only basis upon which the appellant now suggests that there were no grounds for a reasonable belief is the misstatement, based on a template prepared for a co-accused. This is relied on to suggest that either there was confusion or alternatively there was no other evidence. It cannot be inferred from an error of this nature that there was no evidence upon which a reasonable belief could have been formed by the gardaí.
  10. Errors can and do occur in the handling of a complex investigation such as this. In this instance the error was identified quickly, within the course of the same interview, and before the statutory procedure was formally invoked. Consequently, the trial judge did not err in directing the jury that inferences could be drawn from the failure of the accused to answer the question put to him and to account for his presence at the cemetery. Joint Enterprise
  11. The original Notice of Appeal did not include any ground arising from the fact that the prosecution case was one of joint enterprise, alleging a deliberate, pre-planned attack on the - 33 deceased by all of the accused who travelled together to the cemetery armed with various weapons for the purpose of causing, at least, serious harm. The additional grounds of appeal include a ground to the effect that the trial judge erred in the directions given to the jury “as to the necessary elements of joint enterprise relating to presence at the scene of the crime”. Most unsatisfactorily, no argument was addressed to this ground during the hearing of the appeal, but the appellant maintains the ground based on his written submissions only.
  12. The main argument made in the written submissions on this issue does not mirror the terms of the ground of appeal which, as noted, focus on the trial judge’s direction as to presence at the scene. Instead, the written submission contends that the trial judge incorrectly declined to apply DPP v. Dekker [2017] 2 IR 1, [2015] IESC 107 on the basis that it was too factually distinct from the present case. Dekker decided that liability for murder in cases of joint enterprise requires the prosecution to prove that there was foresight that the joint enterprise was enacted with intent to cause serious injury. It is also submitted that developments in the law in the UK relating to joint enterprise since Dekker was decided in this jurisdiction should be followed. The case in question is R. v. Jogee [2017] AC 387 which looked, inter alia, at the mental element of joint enterprise and held that “an intention to assist or encourage the commission of an offence requires knowledge by D2 of any facts necessary to give the principal’s conduct or intended conduct its criminal character”. The appellant contends that a “vague reference to intent to agree to commit a crime” is not sufficient and that the prosecution was obliged to prove knowledge by all actors of intent on the part of the principal actor to commit serious harm if there is to be a conviction for murder. Consequently, it is submitted that “the proofs required to show secondary, accessorial or any liability in respect of the appellant were not met” or alternatively that the jury were not properly charged in that they were not directed that the prosecution must prove intent to cause serious harm on the part of all of the accused. - 34
  13. The DPP’s submission takes issue with these contentions. It is asserted that Dekker is completely factually distinct from this case in that awareness was not a component of the case insofar as the doctrine of joint enterprise arose. Further, it is submitted that the essence of the doctrine of joint enterprise is that where two or more persons agree to participation in criminal acts, they will each be responsible for acts committed to further that plan. The DPP contends that the trial judge directed the jury correctly and the jury were satisfied to convict the appellant based on the principles of common design/joint enterprise.
  14. The circumstances of Dekker were materially different to this case in a number of respects. That case involved the murder of a 17-year-old in respect of which two people were charged. The medical evidence suggested that death had been caused by penetrating wounds which punctured the victim’s internal organs, and which could have been caused by part of a garden shears recovered by the gardaí from a place identified by the accused. The only evidence against each of the accused was contained in statements and interviews in which they had implicated themselves. As regards the particular accused, he maintained that he knew his co-accused intended to give the deceased “a good hiding”; crucially he admitted that he knew the co-accused had brought the shears with him but maintained he did not know that the co-accused was going to kill the victim.
  15. The trial judge directed an acquittal on the basis that the evidence did not establish that the accused knew death or serious injury was going to be inflicted on the victim. The Supreme Court allowed the DPP’s appeal on the basis that there was sufficient mens rea to support conviction as an accessory and, in Galbraith terms, there was sufficient evidence to allow the case go to the jury. It was for the jury to decide whether an activity had been established on the part of the accused from which his intentions might be inferred and that participation in an assault which the accused knew was intended to cause serious injury could - 35 give rise to liability for murder even if the accused, as an accessory, did not realise that the principal intended to kill the victim.
  16. Here the prosecution case against the appellant was based on a number of strands of evidence most particularly the CCTV evidence of his movements immediately prior to and after the attack on the deceased together with identification evidence which placed him at and running away from the scene of the attack. The CCTV evidence of the appellant being collected from his home showed him carrying an object which appeared capable of being used as a weapon. The joint enterprise in issue involved a number of persons acting together and not merely a principal and an accessory. With one possible exception, the weapon or weapons used were not recovered and none of the accused admitted awareness that their coaccused were carrying weapons.
  17. Dekker was specifically mentioned by the counsel for a co-accused in his closing speech to the jury. That counsel acknowledged that if the use of a weapon was foreseen by the participants in the attack, they would all be guilty of murder notwithstanding that the person who administered the fatal blow could not be identified. Crucially however, if the evidence did not establish that the participants foresaw the use of a weapon of this type, then none of them would be guilty of murder although they may well have participated in the attack. Given the differences between the cases and the fact there was no evidence of awareness of weapons from any of the accused, the trial judge was reluctant to bring Dekker into the equation in what was already a very complex case.
  18. In her charge to the jury the trial judge specifically directed them on joint participation, i.e. the alleged coming together of the six accused men with the purpose of attacking the deceased and in so doing to cause him serious harm or to kill him. She emphasised that mere presence at the scene of the crime was not sufficient to establish participation; the accused must have done something concrete to aid the commission of the crime and in so doing must - 36 have intended the crime to happen. As the crime charged was murder, each of the accused must have intended by their actions to assist in killing or seriously injuring the deceased. She asked the jury to consider the state of knowledge of each of the six co-accused and reiterated that the prosecution had to prove that each of them intended to cause death or serious injury. She also advised them that if an accused knew that a co-accused was carrying a weapon, ordinarily that would mean that they foresaw that the co-accused might act with intent to kill or cause serious injury. Ultimately on this issue the trial judge directed the jury that they must be satisfied beyond a reasonable doubt that all six men were jointly aware of what was taking place, whether or not they actually physically had a weapon and that they understood what was to and did occur and that a decision had to be made by the jury individually as regards each accused.
  19. Insofar as the pleaded ground of appeal relates to the “necessary elements of joint enterprise relating to presence at the scene of the crime” no argument in the appellant’s written submissions addresses presence at the scene. The trial judge did direct the jury that mere presence at the scene was not sufficient to establish joint participation in the commission of a crime. Therefore, in the absence of any explanation as to how the direction given might have been inadequate, this ground of appeal must be rejected.
  20. Insofar as the submissions to cover a different issue, namely the mens rea that must be established where someone is accused of participation in a joint enterprise resulting in a murder that involved the use of weapons and it cannot be shown which of the participants used the weapon or weapons, this is not within the grounds of appeal. This is particularly unsatisfactory in circumstances where no oral argument was directed to the point. Nonetheless, having reviewed the direction given by the trial judge in her charge to the jury in light of the evidence in the case, we are satisfied that she did not err. Consequently, even if the broader argument were open to the appellant, we would also reject it. - 37
  21. As each of the individual grounds of appeal have been rejected, it follows that the appellant’s appeal cannot succeed.

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